Before the Justice Department moved last week to drop the charges against Michael Flynn, President Donald Trump’s former national security adviser, department officials and the FBI were in sharp disagreement over whether prosecutors and agents had improperly withheld documents relevant to the case.
Behind the scenes, a set of documents produced late last month in a review of the case ordered by Attorney General William Barr, including notes handwritten by a senior FBI official and emails between investigators, divided the officials who handled them and argued over their importance, multiple US officials briefed on the matter said.
On one side, the documents were seen as insignificant and stale: the FBI had previously handed them over to outside inspectors, the agency said, and a federal judge had already ruled that some of them had been properly described to Flynn’s legal team.
But others felt that the documents, some of which had apparently not been given to Flynn in full, should have been turned over. Some of the lawyers involved fear that by not making clear that there was no misconduct, the department has left them open to disciplinary action.
As prosecutors prepared to disclose the documents to Flynn’s attorneys, an early draft of a cover letter included language saying that the Justice Department didn’t believe the documents had been previously wrongly withheld, the officials said.
But that language, which prosecutors said is not uncommon in similar circumstances, was removed by officials overseeing the final draft, and it did not appear in the version of the letter that was later made public in a court filing.
Similar language was also excluded from the Justice Department’s filing seeking to dismiss the charges, although members of the team had sought to add it in a footnote. When the motion to dismiss was filed last week, the signatures of career prosecutors who had handled the case for months were conspicuously absent, and one prosecutor had withdrawn from the case entirely. Justice Department officials say the career prosecutors didn’t support the legal theory ultimately cited to toss the case.
The internal debate and its continuing fallout are the culmination of a three-year case that has seen Flynn transition from penitent cooperator to a right-wing agitation point boosted by Barr, who has sought to unravel the work of special counsel Robert Mueller. Whether the prosecutors and agents who built the Flynn case acted properly – or could be potentially punished for wrongdoing – remains a central question as John Gleeson, an outside lawyer brought in Wednesday by the judge overseeing the case, begins his work to argue against the Justice Department’s dismissal attempt.
The Justice Department has never explicitly claimed that the newly public material should have been produced at an earlier date as exculpatory information under the court’s so-called Brady rules. But by citing the material in its decision to dismiss the case, the department has suggested as much.
In an interview with CBS News last week, Barr said that the documents pointed towards a conclusion that the FBI had lured Flynn into a “perjury trap.”
A Justice official says the department had intended to defend the conduct of the prosecutors and investigators in the case against the defense’s allegations of misconduct before deciding to dismiss the case, but that has not happened publicly.
The Justice Department charged Flynn in 2017 with lying to investigators about his contacts with the then-Russian ambassador. In a West Wing interview in January of that year, Flynn allegedly lied to two FBI agents regarding his discussions with the ambassador, including about US sanctions stemming from the Kremlin’s 2016 election interference.
Flynn initially pleaded guilty and became a key cooperating witness in Mueller’s investigation. But last year, he fired his original defense team and waged a campaign to try to get a judge to reverse his guilty plea.
Flynn’s new defense counsel has since accused the prosecutors and agents who built the original case of misconduct and last month, seized on the newly disclosed material that had been produced in the review by St. Louis US Attorney Jeffrey Jensen to argue that the charges had to be dismissed.
One of the key documents was a set of handwritten notes by the FBI’s former counterintelligence chief written just ahead of the January 2017 Flynn interview that considered whether the agency’s goal was “to get (Flynn) to lie, so we can prosecute him or get him fired.”
Some of the newly disclosed documents also shed light on the FBI’s move to shut down a counterintelligence investigation of Flynn at one point before the interview, which the Justice Department argued in its motion to dismiss made the interview – and the ensuing crime of lying – unsubstantiated.
The Justice Department also cited a recollection of the decision-making in the period from Mary McCord, the Justice Department’s top national security lawyer at the time of Flynn’s 2017 interview, to back up their claim that the FBI should not have conducted the Flynn interview. But McCord wrote in a New York Times op-ed Sunday that her words had been twisted.
On Wednesday, US District Judge Emmet Sullivan made the surprise decision to appoint Gleeson, a retired judge and criminal prosecutor, to present arguments opposing the Justice Department’s and the defense’s requests to dismiss charges, and to examine whether Flynn should be held in contempt of court for perjury.
The scope of Gleeson’s role has not been publicly defined, and it remains unclear if he will seek to interview officials involved in the dispute over the handling of the new evidence.
Now, some of the lawyers involved in the matter believe the department has left open the prospect that prosecutors and agents who oversaw the Flynn case could face disciplinary action.
Barr has said that Connecticut US Attorney John Durham is still reviewing the period and will be the final say on whether wrongdoing occurred.
Brandon Van Grack, a prosecutor on Mueller’s team who led the Flynn prosecution, was among the lawyers who argued that the department should state that the material wasn’t required to be turned over, the officials briefed on the matter said.
The issue also was a point of dispute between FBI and other Justice officials, the officials said. FBI officials argued that the material didn’t fall into the category of exculpatory information and opposed turning it over. Jensen and other Justice Department officials disagreed and eventually prevailed.
As they prepared to abandon the case, prosecutors and the FBI also disagreed over another late-breaking development. In an interview two days before the Justice Department moved to drop the charges against Flynn, a team of lawyers and agents, led by Jensen and career national security prosecutor Jocelyn Ballantine, interviewed Bill Priestap, the former FBI official who had taken the controversial notes before the Flynn interview.
In the Priestap interview, which was first reported by The New York Times, Priestap said he did not remember the circumstances around the notes, but he maintained that the FBI had a legitimate counterintelligence investigation of Flynn running at the time, according to one of the officials familiar with the matter.
The point would seemingly contradict the Justice Department’s new theory that there was no basis for the FBI interview in which Flynn lied, and some officials felt that the interview undercut the department’s dismissal arguments.
In the final motion to dismiss the charges that was submitted to the court, there was no mention of the Priestap interview having happened. Prosecutors plan to submit a filing that includes information from it once they have the full underlying notes needed to write one, an official said.